NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVELIO GARCIA TORRES, No. 16-70514
Petitioner, Agency No. A200-157-931
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2022**
Before: SILVERMAN, MILLER, and BUMATAY, Circuit Judges.
Evelio Garcia Torres, a native and citizen of Honduras, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo the legal
question of whether a particular social group is cognizable, except to the extent
that deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review for substantial evidence the agency’s factual findings. Id. at 1241. We
deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Garcia Torres
failed to establish that the harm he experienced or fears was or would be on
account of an actual or imputed political opinion. See INS v. Elias-Zacarias, 502
U.S. 478, 483 (1992) (an applicant “must provide some evidence of [motive],
direct or circumstantial”); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1031-
33 (9th Cir. 2014) (record did not compel the conclusion that the petitioner was
persecuted on account of an imputed political opinion). We reject as unsupported
by the record Garcia Torres’s contention that the BIA failed to address his political
opinion claim.
The BIA did not err in concluding that Garcia Torres did not establish
membership in a cognizable particular social group.1 See Reyes v. Lynch, 842 F.3d
1
The IJ articulated one proposed particular social group as “Honduran youth who
are targeted for recruitment into gangs and threatened to be killed for refusing to
do so based on personal and moral grounds.” No party contends the BIA’s
articulation of this proposed social group as “Hondurans fearful of gang influence”
was error. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013)
2 16-70514
1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular
social group, “[t]he applicant must ‘establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question’” (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Conde
Quevedo, 947 F.3d at 1243 (substantial evidence supported the agency’s
determination that petitioner’s proposed social group was not cognizable because
of the absence of society-specific evidence of social distinction).
Substantial evidence supports the agency’s denial of CAT relief because
Garcia Torres failed to show it is more likely than not he will be tortured by or
with the consent or acquiescence of the government if returned to Honduras. See
Garcia-Milian, 755 F.3d at 1033-35 (petitioner did not establish the necessary
“state action” for CAT relief).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
(failure to contest issue in opening brief resulted in waiver). To the extent Garcia
Torres raises, in his opening brief, contentions as to a new formulated anti-gang
particular social group, we lack jurisdiction to consider them. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review
claims not presented to the agency).
3 16-70514